In many civil court cases, it is not the liability of the defendant that causes the jury the most trouble. It is how they measure that liability in dollar amounts.

In previous testimony by plaintiff’s expert Frank Monaco, an accountant with about 40 years experience doing businesses valuations and income streams calculations, testified Gibson’s was set to lose about $5.8 million over the next 30 years from the defendant’s alleged racist accusations.

Defendants today presented their own expert’s findings. That expert, an accountant, stated his opinion that $5.8 million quite a bit off, and told the jury that the 135-year-old small business was only worth $35,000.

Sean Saari, a ten-year veteran of the firm Skoda Minotti in Cleveland thought that the previous study put forward by plaintiffs was “overly inflated, unreliable and erroneous.” He based his valuation by looking at Gibson’s assets, amounts they owed, the worth of items in the shelves and other factors to come to his small valuation.

“I wouldn’t equate longevity with success,” Saari told the jury. “The actual recent numbers show that it is not a successful business.” But then he also added, “It is just more of an indication of permanent damage [to the business].”

That last part added all sort of question marks to the faces of those in the courtroom and in the jury box. The question became, of course, if the business wasn’t worth much, and had permanent damage as well, was that loss of value caused by the protest and racism accusations, or were the losses because Gibson’s had just a business going under before the protests happened.

Plaintiffs’ expert put it this way last week. “When you look at how the revenues have declined, it is clear that those numbers represent that something major happened,” he said, referring to the plus and minuses before and after the protest.

Plaintiffs’ expert said he based his 30-year estimates on the fact that Gibson’s Bakery & Market has been around for more than 130 years and that “when you have people thinking you’re racist, and you live in a small town, the accusation can last a lifetime.” He said 30 years was a “generational” estimate, being that Gibson’s family has been in the business for five generations.

Saari dismissed the 30-year time frame as one that is rarely used by any accountants who study businesses that have had revenue decline like Gibson’s has had. Saari claimed plaintiffs’ expert had gotten his 30-year time frame by putting “generation” in Google. And Saari dismissed Monaco’s numbers as “a way to manufacture damages and get to a higher [monetary] number for the plaintiffs.”

But what this argument does is raise some real questions. The question for the jury is how long will the damage last, and should the school be on the hook for 30 years. Saari said most of the previous report by the plaintiffs was “speculative,” but then again so was his. And Saari refused to include the downtown building that houses Gibson’s as something that can be included in the business asset value, as the building is owned by the family.

That made little sense, as the family owns both the business and the historic building it is housed in, and to say they are not connected in some way economically doesn’t pass the common sense test.

[Photo credit: Daniel McGraw for Legal Insurrection Foundation]

Neither Monaco nor Saari brought up the severity of the recession in this part of the Midwest, and how that might have impacted the businesses’ earnings before the protests. For example, both showed that the business revenues declined slightly from 2010 to 2016, but they didn’t mention that Northeast Ohio was going through the worst part of the housing foreclosure mess. In fact, economists and the media saw the big problems that Lorain County during this time period.

In other words, Saari testified that a loss of revenue during 2012 to 2016 was a sign that the business was in decline and explained that because Gibson’s didn’t have a good values of assets and revenues. But he never mentioned that almost every business like Gibson’s in that part of the country saw a decline during this period. That it survived is testimony to how the family having gutted it out during this tough economic time. Perhaps that will come out on cross-examination tomorrow.

Again, one expert was saying the problems were there before the protests, while the other said there was a definite change in the financials of Gibson’s after Nov. 10, 2016. One more point: Saari didn’t seem to understand the problem that males in their sixties have in finding high paying jobs. He said counting the lost income that David Gibson, age 64, has experienced since the protests is not right, because “It’s not that they have to work for Gibson’s to make the same amount … They could get just as much, if not more, based on the hours they work.”

The defense is expected to end their testimony tomorrow, with the final part from Saari, and then the current president of Oberlin College, Carmen Twillie Ambar. There is a sense from sitting through this trial, that the defense seems to have given up on the libel and defamation side of this case, and is concentrating more on the financials.

Consider this: The defendants initially indicated they would call several students to testify. But that does not appear to be likely to happen based on statements today as to remaining witnesses. The flyers were produced by the protesters, and the student senate resolution demanded action from the administration against Gibson’s, are a huge part of this case. The jury has seen those documents produced by students, and allegedly spread by the college and defendant Raimondo.

It is odd the defense chose to have not one student to come forward and explain their positions in the best way possible. But then again, maybe it is best for the defense to not have them in a courtroom in Elyria, Ohio.

[Flyer handed out by protesters outside Gibson’s Bakery]

The defense now seems to be more focused on cutting their losses as best they can. Perhaps that is why their last witness is the current president of the school, who wasn’t even employed by the school at the time the protests occurred.

If all goes as expected, the defense will finish Saari’s direct examination and the plaintiffs’ counsel will cross examine Saari tomorrow. Then current Oberlin College President Twillie Ambar will be the last witness and closing arguments will begin Monday. The jury could get the case as early as Tuesday, depending how long it takes the attorneys to argue over jury instructions.

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1

WAJ adds:I’m still shaking my head at the tone-deafness of the defense in belittling this family business which has sustained five generations of Gibsons, and at the time of the protests sustained three generations: 90-year-old Allyn W. Gibson, his son David Gibson, and his grandson Allyn D. Gibson. There also were almost a dozen employees. After the protests, the Gibsons stopped taking salaries and most of the employees have been laid off. This is real life to these people. To say that the business was worth only $35,000 erases the lives of these people. Maybe it’s just the plaintiff’s lawyer in me coming out, but I’d cross examine this defense expert and college president, and show in closing argument, the tuition, room and board charges at Oberlin College. [Featured image.] This business, which has been an important feature of the community since 1885, is worth less than one semester at Oberlin College?

Comments

I mean wed been HEARING about the fabled number but to actually see them present it just has me shaking my head. It’s a number so ludicrous on its face that NOBODY will take it seriously.

If I were the Gibson lawyers on cross examination is present him with the huge drop in charges to the student cards (which was more than 60k over the last 2 years of I recall correctly), and ask how he can claim 35k when they have verifiable lost business just to the students.

Now I know the plaintiff numbers are inflated, but 35k is like Gibson’s claiming they were worth 60 bajillion dollars.

If I were on the jury is give Gibson’s the full amount they requested just to spite the college.

I mean the IDEA of a lowball number is somewhat sound – it’s something known as ‘argument to moderation’. Namely, if you have 2 numbers or courses of action, that the ‘correct’ answer will be in the middle. i.e. if Gibsons says they lost $5 million, and Oberlin said they lost $500,000, a large number of people would say reasonable is $2-3 million.

The problem is they’ve presented a clear lie. It only works when the 2 sides both seem plausible.

The number is so ludicrously low that it is effectively zero. It’s so obviously false that most people won’t even take it into consideration.

Instead of the jury thinking, “Where in the middle is the real number”, they’re going to be thinking, “How much of what Gibson’s asked for should we give them”.

It would annoy the Jury cause all they would do is give the Jury what the business was worth pre-nov 2016 to what it was college claim it was worth at that time. They will see how all the action’s of college they went above and beyond just protest as it was an act trying to torpedo a business that has been around for 130+ years. They have name recognition in the town which helps their case for damaged A LOT.

Lisa Jackson is a vile human being. She used a fake e mail address and name to conduct government business in the Obama Administration when she was Director of the Environmental Protection Agency. She engaged in implementing blatantly unconstitutional regulations that resulted in job killing results throughout the economy and resigned in disgrace.

The one thing I keep thinking of with this is that the bakery, having gone through with this, will never really recover. The animosity from the college, should they lose or win, will end up with the bakery out of a lot of it’s business.

It’s hard to say how this will end up being decided, I don’t think the college is in good shape. The down playing of the value really convinced me the college lawyers are not all that confident, as I stated above.

The SJWs acting like they did, as usual, from both the students and the college support look really bad to me. I admit to being biased toward the bakery, but I think I can still judge the merits well enough.

A generations long business that is brought to ruin by SJWs over a criminal act being called racist. The crime committed seems to be ignored by the SWJs (as usual) even though it is the root cause of all this, people in positions of power in the college helped push this. They didn’t care about facts, they smeared the business, the owners and acted high and mighty over this business daring to protest the student’s and colleges direct actions against them without believing that the students should have been taught facts need to be considered first.

I’ve said it also. What would be the best punishment for Oberlin… well money yes… but require them to name the most expensive and important building in the school “Gibsons”. Also… any building replacing that one as the premier building be named Gibsons for 150 years.

My family and I lived in Oberlin (my wife is an academic, but did not teach @ OC..she really wanted to, though!) for about five years, and having worked in a couple of businesses in town, I did get a sense of disdain for a few of the in-town businesses and “townies” (ie “how could these people let in a Wal-Mart !??). It made the line between service and servility tough to manage. If a business was perceived as not toeing the College party line, the College would sooner take its business elsewhere if it could. The business, the products, and the people all need to be sufficiently cosmopolitan/PC, otherwise, the disdain was palpable. The snide email exchanges between College admins ( and the plaintiff’s inferences about them) are entirely plausible to me.

This is why the College won’t back down from its racism claims. [FWIW, I really wished the plaintiffs could have made more effort to ‘disprove’ the flyer and the OC Student Senate Resolution]. It’s exactly what the ‘cosmopolitan’ student, professor and administrator believe about Oberlin, and it’s what drove my wife out of the area (with me and our son in tow): this is “DeplorableVille”, and the residents are too entrenched in their own prejudice (and aren’t ‘enlightened’ enough) to see how prejudiced they really are.

This is about as tone deaf as one can get. I imagine Meredith Raimondo, who’s never actually created a job or produced a widget, gleefully rubbing her hands and grinning triumphantly how she put this business in its place.

I would almost feel bad for Oberlin’s attorneys except they are getting paid to solve the problems created by the school.

I think this is a great point. The Raimondos of the world have no idea what it is like to run a business, to meet payroll, to deal with government regulations, to sweat revenue vs expense month after month. To them this is all a contest to prove who is the most “woke” even if that means destroying a local, multi generational family business. This needs to stop here with a huge judgement levied against Oberlin.

Your point also resonates when one looks at the speaker Oberlin chose for commencement. Lisa Jackson now of Apple, formerly a career bureaucrat in NJ and at the EPA. I looked up her background and she has an impressive track record… summa cum laude Chemical Engineering degree from Tulane, graduate degree from Princeton yet she chose a career path of non-productivity… what a waste… and there she was imploring the Oberlin grads to likely do the same.

What astounds me is that throughout the pain and intended destruction that Oberlin college visited upon this family, they attempted to supplant both the role of the the police and the rule of law by requiring the Gibsons to call them before calling police when a crime was committed, under threat of financial ruin.
It was and is tantamount to extortion.
Then to add insult to injury by valuing their lives at 35,000 dollars.
That is infuriating.

In the five years I lived in Oberlin, I heard residents complain of a ‘plantation’ mentality between OC and the town. I’ve overheard the occasional faculty member speak about how Oberlin would be “nothing without us” (the College), so they should be doing things “our way”. So if in-town developers don’t want to put up LEED-certified “organic” housing, we’ll just get a few alums to do it for us.

Not an expert, but my BS detector is usually accurate. Why would a firm (Skoda Minotti) expose themselves as a fraud like that?

I don’t think you can value Gibson’s business as a sum of assets and liabilities. They are not liquidating their business!!
And if they eventually are forced to do it, that would be 100% the fault of Oberlin college.
OTOH, a good and proper way to value the business is by looking at past and current revenue, as well as future projections, trademarks, name recognition, and location, location location. By the way, YES, how long the business has been operating adds considerable value.
A good question for this witness would be: “All right, show me a comparable business that sold for that price!”

Comparative discounted cash flow (DCF) models could be run. One assuming the event of November 2016 never happened and the other knowing that it did.

That the business was roughly flat from 2010 to 2016 is not bad given the impact of the recession in this region. It would not be hard to extrapolate an improvement in the business post Trump’s election as unemployment has improved in the Midwest.

The BS meter should have gone off with both experts. I cant understand how either expert got their reports/valuations admitted under the applicable Ohio Daubert standard (ohio state law governs instead of federal law). As a CPA, I am frequently involved in valuations (buy sell transactions, estate/gift valuations, divorce valuation, etc). As several others have noted, businesses are valued based on the present value of the future cash flows.

This did not do the defense any favors. If I’m a juror, I have to throw out everything the accountant said when his math comes to peanuts. One could quibble about 300k vs 500k, while not hitting a million, but to be under 100k causes the expert witness to look like a jerk off hack.

With endowments somewhere north of the $820 million available to Oberlin College in 2017, even the largest estimate that the Gibson business loses amounted to over 30 years is a petty cash check.

This trial should have ended out-of-court with a public statement advising friends, neighbors, students and alumni that Oberlin goofed and is now willingly paying a significant price for bad judgement.

I will stick with my prediction: Oberlin is so confident of ultimately prevailing (either by getting the jury to go along with them, or winning in a subsequent appeal) that they are not even putting up much of a defense. Their steadfast belief – that Gibson’s is a close-to-worthless business run by knuckle-dragging incestuous white supremacists – is Oberlin twisting the knife just a bit.

I’m not sure I understand the point of talking about tuition at Oberlin?

It says that Oberlin is pompous and expensive but really says nothing about Gibson’s and their value. It would be a senseless distraction, and the jury would probably see it as a cheap stunt.

I think you are spot on about the glaring holes in the valuation. It’s almost like Oberlin went shopping for a hack expert with an extremely low number already in mind, and this village idiot was the only one willing to do it.

I do wish the plaintiffs had pushed harder on reasons for termination of the Gibson’s contracts. Doing so might either lead to restoration of the contracts and that revenue stream or up the payout.

In watching this debacle play out, I keep thinking about various families across the state and elsewhere watching this and what they think of this. After hearing about how the college is so scared of their students that they actually let the students run the college, make various decisions, and so forth, I bet these parents are wondering who is really running things there and if this is a decent place to send their children for an education.
>
Then when these parents see how Oberlin essentially went after a historical bakery with deep ties to the community because the bakery refused to allow students to get away with a crime, one would think these parents would blanch. Who would want to send their kids to a college that enables criminal behavior or who would be willing to destroy a historic community and family business with traditional family values to enable a petty crime?
>
Add to this the train wreck of a trial and I would assume the reputation of Oberlin is going to be in the toilet or worse. What alumnus would want to support this college and what parent would want their kids to attend there? Oberlin will likely lose this lawsuit in a big way, but they will likely lose far more in terms of reputation and enrollment. If Oberlin was struggling before all of this happened, then this lawsuit could easily mark the end of the college itself.

But, there are a number of parents who have their children educated in just this way, and OC would be the perceived ideal place for them to continue their activism. I think as higher ed. continues its consolidation, institutions will become more selective in just this way. I know of one college ’embracing’ impending lower enrollments by becoming “more selective”.

I would think so, too. But my alma mater is on record with this rationale:

“We are acting to get ahead of what we know are demographic challenges for liberal arts colleges nationally,” said Ron Cole, provost and dean at Allegheny College, following a panel he co-led on leading collaborative change for the sustainable future of small, private institutions. “We are choosing to be smaller and more selective, being true to our mission and ensuring that our curriculum is relevant to the economic and social needs of our time. We believe this to be acting from a position of strength.”

I’m astonished that the news of this trial has not appeared in The Chronicle of Higher Education or in Inside Higher Ed. IHE does have a story about Oberlin’s budget woes from April, and that’s it so far as I could tell.
I wonder how they will handle it if Gibson’s wins the case?

“I’m still shaking my head at the tone-deafness of the defense in belittling this family business which has sustained five generations of Gibsons, and at the time of the protests sustained three generations…”

Why? Don’t you understand, Professor, that these are EDUCATED PEOPLE FROM OBERLIN COLLEGE? Clearly, they are much better, smarter, more good looking, wealthier, than the rubes who run a silly little corner store.
////////

Not only infuriating, but belittling and diminishing, as well.
If the school thinks SO little of Gibson’s as a business, and as a family, how is it that they had a decades-long business relationship?
Tone deaf, indeed.

A business that’s worth only its book value (assets and liabilities) is one that’s worth as much dead as alive. And one that’s worth less than that is literally worth more dead than alive.

Of course, most businesses are worth more than their book value; often they’re worth far more. The whole point of starting and maintaining a business is to produce an entity that’s worth more than it cost to build it; otherwise, why bother?

“F– ’em. A racist business IS worthless. We’re showing some kindness by buying out the rest of your contract, and buying your building (assessed at abt. 30K). Then we’ll bring in a Portlandia-based alum-owned franchise that’s more in-line with our cosmopolitan disposition.”
/sarc

Didn’t the college’s expert take into account good will and all of the other intangibles associated with a business? It looks like he just added up the shelves, the cookies, etc, subtracted the building, and came up with $35,000–I wonder what Oberlin had to pay him to get up on the stand and make an ass of himself.

I think it’s pretty clear, given the lackluster defense, there’s going to be a verdict for Gibson’s. The only question is how pissed off the jury is in reaching a number.

With Ohio’s absurdly low cap on punitive damages, isn’t Gibson’s just trying to work some of that into the compensatory damages? I’m not a lawyer, but the juror in me seems more likely to accept that than Oberlin downgrading the loss. If I want to find for Oberlin, I will find for Oberlin. If I find for Gibson’s, I will figure out what I want to give them, and then look for justification.

If it is possible, I would like part of the judgement against Oberlin to be that each of the defendants be forced to make a public statement to the student body and the public airwaves (in some fashion) that they were wrong to malign Gibson’s, that the business is not racist, and that everyone should buy there and support a business that has supported and been part of the community for 130 years.

Or they think so little of people who are not part of the school? The townies are not “real people” whose rights must be respected, whereas the students and faculty are superior beings who by natural right should enjoy special privileges and immunities. And when the criminal students are black they are entitled to even more privileges….

Do not forget punitive damages. Punitive damages could essentially triple the compensatory award. Say that the jury DOES decide to split the difference between the plaintiff’s assessment and that of the defendants. That would place the compensatory damages as half of the Gibson’s figure, or at around $2.5-3 million. Add another $5 million in punitive damages and the judgement jumps to nearly $8 million dollars. While this is not crippling for Oberlin College, it would essentially save the Gibson family. And, if you get Oberlin to pay Gibson’s legal fees, even better.

And, there is a good chance that Gibson’s could easily get that. According to testimony, revenues at the store had fallen from $828,000 to a verified $525,000 in 2017. It was projected to fall even more in 2018 and 2018. But, let’s assume that it is possible that the revenue generated by the store never rebounds from the $500,000 figure and that the revenue figures, for the business, would have remained at or near $800,000 for the foreseeable future, if the protests had not taken place, this means that the business would lose $5 million dollars in revenue over the next 10 years, not the next 30. If the business survived for the next 30 years, and the decreased revenue continued, this would represent a loss of $15 million dollars to the business. Personally, I would say that the plaintiff’s valuation would be on the conservative side for a generation.

As noted, the defense valuation of the business is delusional. The business generates close to $500,000 a year, even depressed. So, the minimum valuation of the business would be that figure, plus assets [including stock and the building] minus liabilities [operating expenses, taxes and loan liability]. Personally, I can’t see a 135 year old business, with revenues of $500,000 a year, having sufficient liability to make it essentially worthless. But, the kicker is not the current value of the business, but the loss in revenue [i.e. value], over the years, due to the protests. That would determine the amount of the compensatory damages.

I think this is going to end up costing Oberlin College a lot of money.

A drop from $828,000 to $525,000 would be $300,000 a year, not $500,000 a year. Under the conditions which I postulated above, this would translate to $3 million over 10 years [not $5 million] and $9 million over 30 years [not $15 million]. This is still nearly twice the estimate made by the plaintiff’s economist [$5.8 million].

Now that I’ve got the niceties out of the way one of the reasons why I was told back in the nineties that women were better qualified to serve in combat billets was they had on average more education than men.

I could only laugh.

Oberlin is doing it’s best to prove me right. They are doing their utmost to prove that the more exposure one has to higher education the more ruined one becomes.

My parents brought me up right. My dad, the sainted USCG Senior Chief, wanted me to be an officer. That meant I had to graduate from college. So I did my research. I chose the partiest school in Kali.

For two reasons. One, I like to party. Two, if everyone else was partying I could bust the curve. So I went to UC Santa Barbara. It was music to my ears when the other students would open their books and the sand would pour out on the floor. “Oh” they would say, “I was studying on the beach.”

Nobody studies on the beach.

All it took was a little discipline. Just a little. I graduated Magna Cum Loude.

I was sort of looking forward to hearing from some of the students as witnesses, but I’m assuming they were so uncontrollable that the defense gave up–although why they would call them in the first place is beyond me.

Bumped into an alum this AM who was just back from his reunion. He brought back a bunch of goodies from Gibsons. He was shocked that the trial was going on, as he only remembered knowing about it when I’d mentioned the initial problems and then Gibsons filing suit. This brings up an interesting quandry. It was speculated here that Oberlin is persisting with their viewpoint in order to build edginess credibility, yet, at the same time they aren’t telling anyone about it. Reminds me a bit of the Doomsday Device in Dr Strangelove. Doesn’t really work unless people know about it. So I wonder if Oberlin is holding off on their announcement about the trial until it is over, perhaps thinking that they can announce that they spent $xxxK defending justice. Also speculated here, they may be too blinded to realize that the announcement might be “we spent $yyM because we were sure that we were right, but then it was Trump’s fault we lost.”

The thing is, though, in pretty much every single case throughout history, liberals always go into something thinking that their plan is the only possible outcome, and they have never ever been able to learn that the outcome is always overshadowed by the unintended consequences that they simply cannot or will not see. So part of me is disappointed that they haven’t loudly announced what they hoped to achieve here, because I really wanted a projected impact point just so we’d be able to see just how far off target they were.

Imo, Gibson’s was never in this for the money . . . they prosecuted this (and spent $$$’s as the plaintiff) to be “right” and protect their name. Good for them; I think/hope they’ll get a judgement.

$5.8mm is a ridiculous figure and $35k is obviously a low-ball too.

I predicted <$500k two weeks ago, incl some punative damages and perhaps the attorney's fees . . . and I see no reason to change that prediction. Of course I could be wrong.

I too would like some substantive changes at Oberlin as one of the conditions. Public apologies would be ideal, but in our world a judgement is that. Giving Dean Raimondo the opportunity to find new employment comes to mind. Adopting the F.I.R.E. rules for free speech (a safe harbor if there was ever one!) would be a good move.

Definitely a learning moment for the asylum keepers who let a minority of their inmates take charge (University of Missouri and Evergreen State too). Let's hope they learn.

The “value” of the business is not really relevant to determining compensatory damages. What is important is the total revenue generation potential of the business, both before and after the action taken by the demonstrators.

Before the demonstrations, the business generated $800,000 a year. This is just the revenue derived from the operation of the business. In 2017, the revenue generated by the business had sunk to $500,000. This is $300,000 reduction in revenue, nearly 50%. Now, it is possible, but unlikely, given the nature of the business, that net profits might not have been reduced a comparable percentage. Then again, they might have been reduced by a greater percentage than the the percentage reduction in total revenue. So, if the yearly revenue, generated by the business, does not rise to the level before the demonstrations, this is a loss of revenue in every given year. The trick is to accurately predict what the reduction would be.

In this case, it is not unreasonable to postulate that the loss of $300,000 per year would continue for at least 10 years. That would mean the loss to the plaintiffs would be, at least $3 million, over the next ten years. Over thirty years, that would be $9 million. And, that is the figure that the jury may be debating.

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